Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Judge SUDDOCK.
Aaron Maurice Cook shot and wounded two persons outside Platinum Jaxx, a club in downtown Anchorage. A jury found him guilty of first-degree and third-degree assault, second-degree weapons misconduct, and reckless endangerment.1
On appeal, Cook claims that the superior court should have dismissed the indictment because the police did not take possession of the club's surveillance video of the incident. Alternatively, Cook claims that this failure entitled him to a Thorne instruction at trial — i.e., an instruction directing the jurors to assume that the video would have favored Cook.2 But the superior court correctly ruled that the police had no duty to collect the surveillance video.
Superior Court Judge Gregory Miller was assigned to Cook's trial. Several years earlier, before becoming a judge, he had represented two clients remotely associated with Platinum Jaxx in an unrelated matter. Cook claims that Judge Miller should have disqualified himself sua sponte. But the record reveals no connection between the former clients and Cook's case. Moreover, the judge stated that he was unbiased, and Cook never asked the judge to recuse himself.
Cook's last claim is that the superior court erred when it rejected Cook's two proposed mitigators. But the record supports the court's finding that Cook failed to prove these mitigators by clear and convincing evidence.
We therefore affirm Cook's convictions and his sentence.
Facts and proceedings
In the early morning hours of July 7, 2011, a Platinum Jaxx doorman barred Cook's entry into the club. Cook would not leave, so one of the club's security staff — James Rose — picked him up in a bear hug and deposited him on the sidewalk. Shortly thereafter, Cook pulled out a gun and shot Rose. The bullet passed through Rose's leg and hit another person in the buttocks. Cook then fled.
Police arrived soon after the shooting. The club's security cameras had recorded the event, and the officers viewed this video. They did not take possession of the surveillance video at the time because the club employee who knew how to extract video from the system was unavailable.
Approximately two days later, a police detective returned to collect the surveillance video. A club staffer informed the detective that most of the video had become corrupted. Nonetheless, the detective arranged for a copy of the corrupted video to be recorded. But the police cyber crimes unit advised that there was "nearly a zero chance" of recovering any useful video from the recording.
Cook moved to dismiss his indictment, claiming the police wrongfully failed to timely collect the surveillance video. After an evidentiary hearing, the superior court denied the motion. Cook subsequently requested an instruction directing the jurors to presume the video would have contained evidence favorable to the defendant, pursuant to Thorne v. Department of Public Safety.3 The superior court also denied this request.
At trial, Cook testified that Rose threw him to the ground and kicked him. He asserted that he feared that other security staffers might beat him, so he drew a pistol with no round chambered, pointed it at Rose, and pulled the trigger. He further testified that when security staffers pursued him, he chambered a round and shot at them.
Rose and four other employees of the club contradicted Cook's claim that they had acted aggressively toward him. In addition, Anchorage Police Officer Jennifer Pierce testified that when she watched the surveillance video immediately after the incident, she observed no assaultive behavior by club personnel, nor did she recall anyone near Cook when he shot Rose and the bystander.
The jury acquitted Cook of attempted murder and convicted him of one count of first-degree assault, second-degree weapons misconduct, and third-degree assault for injuring the bystander.
At sentencing, Cook contended that two statutory mitigating factors applied: that he acted in imperfect self-defense, and that he was seriously provoked.4 The court rejected these mitigators. The court sentenced Cook to a composite sentence of 9 years to serve.
The police had no duty to collect the surveillance video and consequently had no duty to preserve it
On appeal, Cook renews his due process argument that the indictment should have been dismissed for failure to collect and preserve evidence or, alternatively, that he was entitled to a Thorne instruction. Our recent decision in Carter v. State rejected a similar claim that the police had a duty to collect a third party's surveillance video, or that their failure to do so merited a Thorne instruction.5 Applying the reasoning of Carter to this case, we affirm the court's conclusion that the police had no duty to collect or preserve the surveillance video. Accordingly, Cook was not entitled to a Thorne instruction.
The judge was not required to disqualify himself sua sponte
Cook sought leave to cross-examine a club manager about a 2008 federal investigation into Platinum Jaxx. During this discussion, Cook's attorneys pointed out that Judge Miller had apparently represented persons associated with the club regarding that matter. The judge acknowledged that he had represented two persons with interests related to the 2008 matter, but he stated that his former clients did not have a current pecuniary interest in the club. The judge explained that this prior representation was unrelated to the present case. Cook's attorneys did not inquire further and did not move to disqualify Judge Miller.
Cook now argues that Judge Miller should have disqualified himself sua sponte pursuant to AS 22.20.020(a)(5) and (a)(9). Subsection (a)(5) states that a judicial officer may not preside in a matter where "a party, except the state or a municipality of the state, has retained or been professionally counseled by the judicial officer as its attorney within two years preceding the assignment of the judicial officer to the matter."6 Here, the judge's former clients were not parties to Cook's criminal prosecution, as required by that subsection. Even if they had been parties, the prior representation was outside of the two-year time period specified in subsection (a)(5) for mandatory judicial disqualification.
Under subsection (a)(9) a judge must self-disqualify whenever the judge believes that "for any reason, a fair and impartial decision cannot be given."7 Cook at no point asked Judge Miller to disqualify himself or even suggested that he consider doing so. Judge Miller stated that his prior representation was "incredibly unrelated" to the case at hand and that he saw no basis for recusal. Under these facts, the judge did not err when he did not disqualify himself sua sponte.
The judge properly rejected Cook's proposed mitigators
At sentencing, Cook argued that two statutory mitigators applied: (1) that he had committed the offenses under some degree of threat insufficient to constitute a complete defense but that had significantly affected his conduct;8 and (2) that he had acted with serious or significant provocation from the victim.9 Cook contended that the record showed that he acted out of fear when the club's security personnel provocatively confronted him. The superior court rejected the proposed mitigators.
On appeal, Cook argues that because the police did not secure the surveillance video, the superior court was required to view Cook's confrontation with the club personnel in a light favorable to his proposed mitigators. He contends that, viewed in that light, the facts supported his proposed mitigating factors, and therefore the court clearly erred in rejecting the mitigators.
As we held above, the police had no duty to collect and preserve the surveillance tape, therefore Cook's claim that the confrontation should be viewed in a light favorable to him is unavailing.
At sentencing, Cook had the burden to prove by clear and convincing evidence that the statutory mitigators applied.10 Multiple witnesses, including a police officer who viewed the incident on surveillance video, contradicted Cook's account that he was the victim of assaultive behavior at the hands of the security staff. Based on these witnesses' testimony, the court found that after Rose carried Cook outside and set him down on the sidewalk, Rose and the other security staff members walked away. The court also found that Cook could have done so as well.
We find that the witnesses' trial testimony provided a sufficient basis for the court's factual findings. Consequently, the superior court did not err when it concluded that Cook had failed to prove his proposed mitigators by clear and convincing evidence.
Conclusion
The judgment of the superior court is AFFIRMED.
